Trade Bar Files Amicus Curiae Brief Supporting ITC's Redaction Policies

The Customs and International Trade Bar Association filed an amicus curiae brief opposing the Court of International Trade’s refusal to redact an December 2023 opinion sustaining an affirmative injury finding regarding mattress imports (see 2312200070) (CVB v. United States, CIT # 21-00288) (CVB, Inc. v. United States, Fed. Cir. # 24-1504).

The day after the opinion was issued, the International Trade Commission wrote a letter to CIT asking it to redact the opinion, saying it believed CIT might have disclosed proprietary information that should have been redacted (see 2312210022).

On Jan. 8, 2024, the trade court rejected the ITC’s request (see 2401090046). Judge Stephen Vaden argued that the alleged confidential information, company names and certain numeric estimates, weren’t confidential because that information was either publicly available or hadn’t been bracketed by the ITC during litigation.

Vaden has criticized the ITC for the information it has sought to be protected from public view. In April, for a different case, he presided over a four-and-a-half-hour oral argument session, involving 12 attorneys, that he opened with the statement: “None of us should be here in this courtroom today.” He admonished the ITC’s counsel for submitting pages of redacted information that he said he had found on either public company websites or Securities and Exchange Commission filings -- or, even, in news articles.

The ITC had asked that the argument to be held in closed session, as Vaden and an attorney went through every redacted document to determine whether each redaction had been necessary, but Vaden refused.

The trade bar, representing both petitioners’ and importers’ lawyers, sided with the ITC in its amicus curiae brief in the ongoing appeal of Vaden’s refusal to redact the December 2023 mattresses opinion.

It said it agreed that public transparency is an essential element of litigation. However, it argued that the current system of evaluating proprietary business information and granting redactions actually serves to increase transparency, not hinder it.

Businesses have the final say as to whether their proprietary information is disclosed to other litigating parties in confidential filings, it said. They may request redaction of any information submitted to the ITC; if the ITC determines that a redaction isn’t necessary, however, it doesn’t then publicly disclose the information -- it returns it so that the business can decide whether to either proceed publicly with filing the information or not file at all.

“The only reason that companies agree to submit confidential information to the Commission is because counsel -- or, when not represented by or working with counsel, the Commission directly through written or other means -- informs them that such information will not be disclosed without their consent,” the trade bar said.

Without such an affirmation, all sides face a much more difficult litigation process, the brief said.

It provided quotes from both a petitioners’ attorney and an attorney for respondents about how difficult it had been to practice law without the rules in place allowing for the redaction of confidential information in public filings.

“We handled the economic issues in a very primitive, pragmatic way,” the respondents’ attorney said. “We would get the statistics that were available from the Census Bureau, and we made a big use of Dun & Bradstreet reports. Unreliable as they notoriously were … .“